Citation Nr: 18151594 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-36 364 DATE: November 19, 2018 ORDER Entitlement to service connection for right knee disability is denied. Entitlement to a compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for back disability, to include degenerative disc disease of the lumbar spine, is remanded. Entitlement for service connection for left knee condition is remanded. FINDINGS OF FACT 1. The most probative evidence of record reveals that the Veteran does not have a current right knee disability. 2. Throughout the entire appeal period, the Veteran’s left ear hearing loss was manifested, at worst, by Level I hearing acuity. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for an initial compensable disability rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.20, 4.31, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2004 through March 2008, September 2009 through October 2010, and August 2011 through March 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed that decision. Service Connection Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a) (2017). 1. Entitlement to service connection for right knee condition The Veteran claims to have a right knee condition related to active service. On his October 2013 claim form, the Veteran generally requested service connection for a bilateral knee disability, without any mention of the date of onset or why he believes service connection is warranted for his right knee disability. Similarly, his December 2014 notice of disagreement and July 2016 Form 9, lists the claims on appeal without any specificity regarding his right knee. The Board has reviewed the Veteran’s service treatment records. The Veteran’s October 2004 entrance examination recorded no knee complaints or diagnosis. The Veteran’s pre- and post-deployment assessments in October 2008, September 2009, October 2009, July 2010, and January 2011, did not record a right knee diagnosis. There are also no other lay statements, post-service treatment notes, or medical opinions recording any complaints of functional impairment due to right knee pain or a diagnosed right knee disability. The totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of any current disability, related to a right knee condition, during the relevant period on appeal. Absent the required diagnosis of a current disability, a claim for service connection fails. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the reasons provided above, the preponderance of evidence is against the Veteran’s claim for service connection for a right knee disability. Increased Rating Generally, disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. 2. Entitlement to a compensable rating for left ear hearing loss The Veteran’s service-connected left ear hearing loss is currently assigned a noncompensable disability rating under the provisions of Diagnostic Code (DC) 6100 of the Rating Schedule. See 38 C.F.R. § 4.85. The Board notes that service connection is also in effect for tinnitus with a 10 percent disability rating. Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. See 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. Id. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. See 38 C.F.R. § 4.85(b). The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. See 38 C.F.R. § 4.85. When there is no speech discrimination testing, Table VIa is used, based on the puretone threshold average alone if the examiner certifies the use of the speech discrimination test is not appropriate, or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. See 38 C.F.R. § 4.85(e). In August 2014, the Veteran submitted to a VA examiner for testing of his alleged left ear hearing loss. During the audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 15 45 15 Speech audiometry revealed speech recognition ability of 98 percent in the left ear. The examiner opined that the Veteran had sensorineural hearing loss of the left ear related to service. The Veteran was examined again by a VA audiologist in October 2015. During this audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 15 35 45 The average puretone thresholds were 26 decibels in the left ear. Speech audiometry revealed speech recognition ability at 96 percent in the left ear. Utilizing Table VI listed in 38 C.F.R. § 4.85, the above audiological findings show Level I acuity in the left ear. The combined numeric designations of Level I for your service-connected left ear and Level I for your non-service-connected right ear warrant a 0 percent rating under Table VII. 38 C.F.R. § 4.85. Based on the results of the audiological evaluations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, the Veteran’s hearing loss has not approximated the criteria for a rating higher than 0 percent for the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and entitlement to a disability rating higher than 0 percent for left ear hearing loss is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   REASONS FOR REMAND 1. Entitlement to service connection for back disability, to include degenerative disc disease of the lumbar spine, is remanded. The Veteran contends that his back disability is related to active service. In July 2010, service treatment notes record the Veteran’s complaints of a back injury after changing a tire that weighed roughly 500 to 600 pounds. He also complained of radiating pain that made his knees buckle sometimes. Resultantly, the Veteran was diagnosed with a backache, given a Toradol injection, and was restricted from activities for a week. Back pain was also noted in a March 2011 periodic health assessment. In September 2016, a VA examiner noted a diagnosis of degenerative disc disease in L4-L5 of the Veteran’s lumbar spine. However, the examination focused mostly on functional limitations resulting from the Veteran’s lumbar spine diagnosis. It did not address whether the diagnosis was related to an in-service injury. As such, this examination is inadequate to establish a nexus between the Veteran’s in-service injury and his current disability. Thus, a remand is necessary in this case to determine the nature and etiology of the Veteran’s back injury, and whether the currently diagnosed back disability is related to the July 2010 in-service injury. 2. Entitlement for service connection for left knee condition is remanded. The Veteran contends that his left knee pain began while in training camp due to constant stress of marching. He specifically alleged that he was seen for his injuries during graduation, but formal documentation was not completed. Although the current record does not show post-service treatment or a diagnosis for a left knee condition, the Board notes the Court of Appeals for the Federal Circuit recently found that pain alone can constitute a “disability” under § 1110, because pain can cause functional impairment. See Saunders v. Wilkie, 886 F.3d 1356. In accordance with the Saunders ruling, because the Veteran has alleged that he has pain in his left knee because of an in-service injury, it is necessary to conduct a VA examination to assess whether the Veteran has any functional loss or any other identifiable diagnosis. The matters are REMANDED for the following action: 1. Ask the Veteran to identify where he is receiving treatment for his back and knee disabilities. Obtain any outstanding treatment records relevant to the claim on appeal. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of any back disability, to include degenerative disc disease of the lumbar spine. The examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed back disability to include degenerative disc disease of the lumbar spine, is etiologically related to or caused by an event, injury, or disease incurred in service. The examiner is asked to specifically consider the in-service treatment for back complaints. The examiner is also asked to provide a rationale for any opinions reached. 3. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed left knee disability. The examiner is asked to determine whether the Veteran has any functional impairment in the left knee. The examiner should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent) that any diagnosed left knee disability is etiologically related to or caused by an event, injury, or disease incurred in service. The examiner is also asked to provide a rationale for any opinions reached. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.B. Mmeje, Associate Counsel